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TMI Blog2005 (3) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner challenged the same before Commissioner (Appeals) who vide order dated 5th October, 2004 (Annexure-D) dismissed the appeal since the petitioner had failed to deposit amount of Rs. 5,00,000/- which was directed to be deposited vide order dated 19th May, 2003. The petitioner carried the matter in appeal before the Tribunal and the Tribunal, disposed of the stay application as well as the appeal vide impugned order dated 27th November, 2004 directing the petitioner to deposit sum of Rs. 5,00,000/- within a period of eight weeks, and upon such deposit being made the balance amount of pre-deposit of duty and penalty stood waived. As the Commissioner (Appeals) had dismissed the appeal for non-compliance of order made under provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent decision of the Tribunal on merits all adverse orders with special reference to Order-in-Original dated 30th April, 2001/8th May, 2001 (Annexure-A) was required to be set aside and the respondent was prevented from enforcing recovery of any demand in pursuance of the said order. In support of the aforesaid proposition Mr. Dave highlighted the provisions of Section 35F of the Act to submit that the Tribunal could not have imposed any condition for making a pre-deposit before the Appeal should be heard by the Commissioner (Appeals) on merits and in these circumstances also, the impugned order dated 27th September, 2004 was bad in law. 5.As can be seen from the facts on record, which are undisputed, the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making process of the Tribunal is in accordance with law. In these circumstances, there is no question of the Court quashing and setting aside the Order-in-Original (Annexure-A), especially in light of the fact that the petitioner has already availed of the alternative remedy available to the petitioner under the statute in absence of any material on record, to suggest that the impugned order of the Tribunal made by exercise of discretion under Section 35F of the Act, is in any manner incorrect. 7.As can be seen from the Tribunal's subsequent order dated 25th January, 2005/3rd February, 2005, the Tribunal is aware of the fact that it could not go into the merits of the case, it having not entered into any such exercise in first round whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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